CERCLA, CWA and State Law: Complexities With Overlapping Authorities

Transcription

1 Presenting a live 90-minute webinar with interactive Q&A CERCLA, CWA and State Law: Complexities With Overlapping Authorities Navigating Requirements for Soil and Sediment Remediation and Storm and Surface Water Management THURSDAY, AUGUST 8, pm Eastern 12pm Central 11am Mountain 10am Pacific Today s faculty features: Joan Snyder, Partner, Stoel Rives, Portland, Ore. Steven G. Jones, Holland & Hart, Salt Lake City, Utah The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions ed to registrants for additional information. If you have any questions, please contact Customer Service at ext. 10.

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5 CERCLA, CWA and State Law: Complexities With Overlapping Authorities Steven G. Jones Holland & Hart LLP 5

6 Overlapping and Sometimes Conflicting Laws and Regulations Overview - what are the applicable laws and regulations What law governs soil and sediment remediation? Which laws govern storm and surface water management? Are there intersections between the two? 6

7 CERCLA, State Superfund Laws & the Clean Water Act In the context, two primary bodies of law govern the response to contamination CERCLA and its state-law equivalents The Clean Water Act (CWA) 7

8 CERCLA / State Superfund Statutes The Comprehensive Environmental Response Compensation and Liability Act (CERCLA) is commonly known as the Superfund statute Many (but not all) states have equivalent statutes Some state statutes provide for cleanup of petroleum, and may grant attorney s fees 8

9 CERCLA/State Law Approach These statutes are reactive: we ve got a mess on our hands how are we going to clean it up and who is going to pay for it? Joint and several liability for PRPs Any PRP is responsible for 100% of the cleanup costs PRPs can seek cost recovery and contribution from others 9

10 Clean Water Act The Federal Water Pollution Control Act is commonly known as the Clean Water Act. Here again, many states have equivalent statutory law State environmental departments can (and frequently do) have delegated enforcement authority for the CWA, but state water quality standards may go beyond the CWA standards In addition to NPDES permits, most states also issue stormwater discharge permits for industrial and construction discharges 10

11 CWA Approach is Preventative CWA seeks to prevent pollution All discharges are presumed to violate the CWA, except those that are permitted The federal Clean Water Act gives states the primary responsibility for implementing programs to protect and restore water quality, including monitoring and assessing the nation's waters. Dep t of Ecology: Clean Water Act Monitoring Strategy for Washington State 11

12 NPDES Permits and TMDL Limits Point Source discharges are permitted using NPDES permits These set effluent limits and, in certain instances, mixing zones Self-reporting is usually required and can generate private party enforcement TMDLs are limits issued for impaired water bodies, restricting discharges of pollutants to those waters 12

13 Implementation and Enforcement - CERCLA CERCLA and its state-law equivalents are enforced through regulatory orders from EPA and/or state environmental agencies Based on the threat of strict, joint and several liability, privately managed cleanups are common Cost recovery and contribution actions allow recovery of disproportionate cleanup costs 13

14 Implementation and Enforcement - CWA Government enforcement is done using regulatory orders However, private party enforcement is common, based on selfreported violations This includes private parties requesting action from regulators 14

15 The Confluence When Statutes Collide!! 15

16 The CWA s Permit Shield and Federally Permitted Releases Under CERCLA CWA 402(k) is commonly known as the shield provision Under 402(k), compliance with an NPDES permit is deemed compliance for all CWA enforcement sections The Permit Shield covers pollutants specifically identified in the permit and other pollutants identified during the application process, either by the applicant or as part of that process 16

17 CERCLA Liability and the CWA Permit Shield CERCLA 101(10)(H) exempts federally permitted releases from the definition of release under CERCLA This exemption protects NPDES permittees from CERCLA liability If the substance is identified in the permit, and The permit contains a condition addressing it The federally permitted release exemption applies to releases to POTWs and from POTWs if pretreatment standards are met 17

18 Intersection of CERCLA and CWA Cleanup of the Foss Waterway United States v. Wash. State Dep t of Transportation, W.D. Wash. No. C RJB Three years of litigation concerning WSDOT s responsibility for cleanup costs WSDOT counterclaims against U.S. Army Corps for contribution from dredging the Foss in 1904! WSDOT liable under CERCLA $6 million judgment 18

19 MTCA Example Cleanup of the Foss Waterway Pacificorp Environmental Remediation Co. v. WSDOT, 162 Wn. App. 627 (2011) Pacificorp s predecessors operated a coal gasification plant Coal tar and other discharges from the plant contaminated the Foss Waterway Construction of I-705 released some of these sediments In addition, storm drains for the I-705 freeway drained into the waterway 19

20 Pacificorps v. WSDOT cont d EPA sent notice letters to PRPs, including WSDOT. Some PRPs cleaned up the waterway, then sued WSDOT for contribution WSDOT was found liable under MTCA as an owner, operator and arranger Trial court entered judgment against WSDOT for $6 million in costs, $1.6 million in attorney s fees and a 2% share of future costs WSDOT s argument that it only contributed some of the stormwater was rejected no minimum level of hazardous substance is required to trigger MTCA liability. 20

21 The CWA Permit Shield and State Water Quality Standards The CWA permit shield has been held to pre-empt state law claim for permitted releases. What is a permitted release? Piney Run Preservation Association v. County Commissioners of Carroll County, 268 F.3d 255 (4th Cir. 2001). Plaintiffs challenged discharge of heated effluent; heat was not listed as a discharge. Fourth Circuit held that all discharges adequately disclosed to the permitting authority are within the scope of the permit s protection. 21

22 Current issues: (1) Are Non-Point Sources CWA Releases? Decker v. Northwest Environmental Defense Center, S.Ct., 2013 WL (March 20, 2013). CWA Section 402(p) covers stormwater associated with industrial activity a term that the CWA does not define. EPA s then-current Industrial Stormwater Rule, exempts discharges of channeled stormwater runoff from logging roads from the NPDES permitting scheme. 22

23 Current issues (cont d) (2) Regulation by Guidance Letter Iowa League of Cities v. EPA, F.3d, 2013 WL (8th Cir. March 25, 2013). Eighth Circuit rejects EPA s argument that two letters were statements of policy, subject to revision and therefore exempt from APA review Construing the letters as promulgations of effluent limits, on mixing zones and blending, the court held they were subject to notice and comment and judicial review. 23

24 Current issues (cont d) (3) Are Rail Cars CWA Point Sources? On June 5, the Sierra Club and other environmental groups filed suit against BNSF and a number of coal producers: Sierra Club, et al. v. BNSF Railway, et al., W.D. Wash. Case No. 2:13-cv JCC; The plaintiffs allege that coal and coal byproducts discharged from open rail cars without an NPDES permit violate the CWA. 24

25 For additional information... Steven G. Jones Holland & Hart LLP ; (cell) 25

26 : Portland Harbor Superfund Site Stormwater Source Control Presented by Joan P. Snyder, Esq. Stoel Rives LLP Environmental, Land Use and Natural Resources Practice Group August 8, 2013 Strafford live phone/web seminar THURSDAY, AUGUST 8, 2013 STRAFFORD SEMINAR 26

27 Portland Harbor Superfund Site Portland, Oregon Listed on NPL in 2000; Draft Remedial Investigation (RI) and Draft Feasibility Study (FS) undergoing EPA review; Record of Decision expected mile stretch of Willamette River Largely in zoned industrial sanctuary THURSDAY, AUGUST 8, 2013 STRAFFORD SEMINAR 27

28 PORTLAND HARBOR SUPERFUND SITE STORMWATER REGULATION Industries in Harbor subject to three regulatory authorities for stormwater: EPA Oregon Department of Environmental Quality (ODEQ) City of Portland THURSDAY, AUGUST 8, 2013 STRAFFORD SEMINAR 28

29 EPA PERSPECTIVE: Authority under CERCLA 11-mile stretch of Willamette River Including bed and banks Including upland properties if necessary for implementation of the remedy Memorandum of Understanding (MOU) with ODEQ gives ODEQ primary responsibility for source control of adjacent upland properties, subject to EPA review THURSDAY, AUGUST 8, 2013 STRAFFORD SEMINAR 29

30 ODEQ PERSPECTIVE: ODEQ Cleanup Section: Focus on upland properties, riparian and stormwater sources Primary authority under CERCLA and Oregon Cleanup Law, ORS et seq. MOU with EPA requires ODEQ to control upland sources To prevent recontamination of sediment To control in-river risk to human health and ecological receptors THURSDAY, AUGUST 8, 2013 STRAFFORD SEMINAR 30

31 ODEQ PERSPECTIVE: (cont.) ODEQ Water Quality Section: ODEQ also has delegated Clean Water Act (CWA ) authority NPDES permits: Industrial POTW MS-4 NPDES General Stormwater 1200-Z permit NPDES Individual Stormwater permits TMDLs THURSDAY, AUGUST 8, 2013 STRAFFORD SEMINAR 31

32 CITY OF PORTLAND PERSPECTIVE: IGA for City Outfalls: 2003 Intergovernmental Agreement with ODEQ to identify and control contaminant sources from City stormwater conveyance systems discharging into the Portland Harbor Study Area THURSDAY, AUGUST 8, 2013 STRAFFORD SEMINAR 32

33 CITY OF PORTLAND PERSPECTIVE: (cont.) Stormwater Permit Authority: City of Portland acts as Local Agent for implementation of NPDES General Industrial Stormwater Permit 1200Z within City boundaries THURSDAY, AUGUST 8, 2013 STRAFFORD SEMINAR 33

34 CITY OF PORTLAND PERSPECTIVE: (cont.) City Code Authority: City regulates all discharges into its Storm Sewer system under City Code Chapter THURSDAY, AUGUST 8, 2013 STRAFFORD SEMINAR 34

35 CITY OF PORTLAND PERSPECTIVE: (cont.) City MS-4 stormwater Permit and sanitary sewer permits: City subject to MS-4 NPDES permit for municipal stormwater discharges City subject to NPDES permit for POTW, which includes combined sewer overflows (CSOs) and emergency sanitary sewage overflows (SSOs) caused by blockages, failures at pump stations, etc. THURSDAY, AUGUST 8, 2013 STRAFFORD SEMINAR 35

36 OVERALL TOOLS TO CONTROL CONTAMINANTS IN STORMWATER Best Management Practices (BMPs) Stormwater Pollution Control Plans (SWPCPs) Monitoring Corrective Actions BMPs Treatment Stormwater redirection (infiltration) Process Changes Source remediation/removal THURSDAY, AUGUST 8, 2013 STRAFFORD SEMINAR 36

37 Think of as serially escalating... LOWEST LEVEL: CITY CODE COMPLIANCE If not required to have 1200-Z Stormwater permit, but discharge to City storm sewer, then City can use City Code to require: BMPs and SWPCP Accidental Spill Prevention Plan Monitoring data to characterize types and loads of pollutants THURSDAY, AUGUST 8, 2013 STRAFFORD SEMINAR 37

38 SECOND LEVEL: NPDES PERMIT REQUIRED Could be WWTP, MS-4 NPDES Permit or individual permits This discussion focuses on 1200Z Industrial General Stormwater permit Listed SIC Codes, or as otherwise required by DEQ BMPs and SWPCP Quarterly Monitoring Benchmarks based on meeting water quality standards for receiving water body Statewide benchmarks Sector specific benchmarks Impairment parameters for 303(d) listed receiving waters Required Tier I and Tier II Corrective Actions for exceeding benchmarks THURSDAY, AUGUST 8, 2013 STRAFFORD SEMINAR 38

39 SECOND LEVEL: NPDES 1200-Z PERMIT REQUIRED (cont.) Regulatory concentration goals clear and fixed (statewide and sector-specific benchmarks and impairment reference concentrations) Consequences clear: Tier I corrective actions required (SWPCP review and possibly additional BMPs) if exceeded in any one sampling event Tier II correction actions (treatment) required if geometric mean of quarterly samples in second year of permit do not meet benchmark; implementation required by year 4 of permit Control measures required to meet technology based effluent limits: to the extent achievable using control measures that are technologically available and economically practicable and achievable in light of best industry practice. THURSDAY, AUGUST 8, 2013 STRAFFORD SEMINAR 39

40 THIRD LEVEL: SOURCE CONTROL UNDER CERCLA OR OREGON CLEANUP RULES First, legal limitations (WE LL GET BACK TO THESE... ): CERCLA 107(j) ( federal permit shield ): Recovery by any person (including the United States or any State or Indian tribe) for response costs or damages resulting from a federally permitted release shall be pursuant to existing law in lieu of this section. CERCLA 101(10): The term federally permitted release means (A) discharges in compliance with a [NPDES permit], [or] (B) discharges resulting from circumstances identified and reviewed and made part of the public record with respect to a [NPDES permit] and subject to a condition of such permit, [or] (C) continuous or anticipated intermittent discharges from a point source, identified in a [NPDES permit] or permit application, which are caused by events occurring within the scope of relevant operating or treatment systems... THURSDAY, AUGUST 8, 2013 STRAFFORD SEMINAR 40

41 THIRD LEVEL: SOURCE CONTROL UNDER CERCLA OR OREGON CLEANUP RULES (cont.) Legal limitations: (cont.) Oregon Cleanup Law ( Oregon permit shield ): OAR (2) Conditional Exemption of Permitted Releases. These rules do not apply to permitted or authorized releases of hazardous substances, unless the Director determines that application of these rules might be necessary in order to protect public health, safety or welfare, or the environment. These rules may be applied to the deposition, accumulation, or migration resulting from otherwise permitted or authorized releases. THURSDAY, AUGUST 8, 2013 STRAFFORD SEMINAR 41

42 THIRD LEVEL: SOURCE CONTROL UNDER CERCLA OR OREGON CLEANUP RULES (cont.) Implemented under Voluntary Cleanup Agreement with or Order from DEQ Cleanup Section Requires risk assessment, source control evaluation and implementation of source control Guidance: EPA/ODEQ Portland Harbor Joint Source Control Strategy ( JSCS ), 12/05 ODEQ Guidance for Evaluating the Stormwater Pathway at Upland Sites, updated 10/10 THURSDAY, AUGUST 8, 2013 STRAFFORD SEMINAR 42

43 EPA/ODEQ JSCS 12/05 EPA/ DEQ PORTLAND HARBOR JOINT SOURCE CONTROL STRATEGY -- FINAL, DECEMBER 2005 Upland Site Characterization Identify complete migration pathways Identify site COIs Collect appropriate samples and screen against against JSCS Table 3-1 Screening Level Values and apply weight of evidence approach to identify pathway specific COPCs For stormwater and storm line solids, compare to DEQ Tool for Evaluating Stormwater Data, Appendix E to Guidance for Evaluating the Stormwater Pathway at Upland Sites, as updated October 2010 Perform Source Control Evaluation If necessary, implement Source Control Measures THURSDAY, AUGUST 8, 2013 STRAFFORD SEMINAR 43

44 ODEQ Guidance for Evaluating the Stormwater Pathway THURSDAY, AUGUST 8, 2013 STRAFFORD SEMINAR 44

45 App. E: Knee of the Curve Data analysis THURSDAY, AUGUST 8, 2013 STRAFFORD SEMINAR 45

46 THIRD LEVEL: SOURCE CONTROL UNDER CERCLA OR OREGON CLEANUP RULES (cont.) Using this guidance, consequences much less clear than under 1200Z permit JSCS starts with Screening Level Values (SLVs), which are not administratively promulgated standards Can use knee of the curve tool Coupled with other Lines of Evidence Which can include loading models, with assumptions that can be debated all ways to Sunday However, these are the tools we have to try to make good decisions THURSDAY, AUGUST 8, 2013 STRAFFORD SEMINAR 46

47 Comparison: 1200Z to JSCS SCE Legal basis Who has to comply? Overall Goal 1200-Z NPDES Promulgated Administrative Rule SIC Code or otherwise required Meet WQSs in receiving body based on model Portland Harbor Cleanup Source Control --General cleanup rules --Agency Guidance on application to stormwater Only if under VCA or Order from DEQ Cleanup section Risk-based: meet WQSs and be protective and prevent recontamination of sediment. THURSDAY, AUGUST 8, 2013 STRAFFORD SEMINAR 47

48 Comparison: 1200Z to JSCS SCE Specific Goals How applied 1200-Z NPDES Benchmarks (guideline concentrations, not effluent limitations) Single exceedance > review of SWPCP and BMPs Exceedance by GeoMean in Permit Yr 2 >Tier II treatment requirements, to be implemented by Permit Yr 4 Portland Harbor Cleanup Source Control Presumption that meet JSCS SLVs at end of pipe. Unclear. City of Portland Outfall report (2010) focused its analysis on geometric means. Oversight of industrial sites seems focused on individual exceedances. ODEQ NPDES 1200Z Evaluation Report: The geometric mean tends to dampen the effect of very high or low values and is an appropriate measure of stormwater discharges given their highly variable nature. THURSDAY, AUGUST 8, 2013 STRAFFORD SEMINAR 48

49 Parameter Specific Comparison: Lead Pb CWA Program: 1200-Z NPDES 40 ug/l (total) benchmark Cleanup Program: Portland Harbor JSCS 0.54 ug/l (dissolved) SLV 5-15 ug/l (total) flat portion of stormwater comparison curve in App. E to Guidance for Evaluating the Stormwater Pathway THURSDAY, AUGUST 8, 2013 STRAFFORD SEMINAR 49

50 Lead at 1200Z Permit Level Goal: Protecting in-stream beneficial uses, focused on water column exposure pathways. Benchmark of 40 ug/l is risk based based on model to predict end-of-pipe concentration that has only 10% probability of exceeding in-stream water quality criteria THURSDAY, AUGUST 8, 2013 STRAFFORD SEMINAR 50

51 Lead at JSCS SCE level How ODEQ/EPA currently approaching: Goal is to meet the JSCS SLV of 0.54 ug/l (10x lower than 1200Z permit level) However, if have implemented all practical BMPs AND have achieved flat portion of App. E curves AND loading study shows no likely adverse impact on sediment, then no further treatment required at this time but adaptive management required and additional treatment may be required in future. THURSDAY, AUGUST 8, 2013 STRAFFORD SEMINAR 51

52 Lead Portland Harbor Knee of Curve 1200Z benchmark 40 ug/l JSCS SLV 0.54 ug/l THURSDAY, AUGUST 8, 2013 STRAFFORD SEMINAR 52

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54 Lead conclusions Legal: EPA has no CERCLA authority to require further source control of discharge absent violation of permit since lead covered by conditions of permit ODEQ has authority under exception to Oregon permit shield ONLY IF (1) ODEQ Director determines necessary to protect environment OR (2) applied to the deposition or accumulation of lead. Hard to argue 0.54 ug/l SLV necessary to protect water column because 1200Z permit, which has been through rulemaking process, determined that 40 ug/l is protective. Could require more than meeting 40 ug/l benchmark if necessary to prevent deposition that is causing environmental harm THURSDAY, AUGUST 8, 2013 STRAFFORD SEMINAR 54

55 Lead conclusions Practical: With respect to protection to water column, 1200Z and Cleanup Program should require same concentration at end of pipe, both in terms of numeric benchmark/slv and how applied (e.g. to geometric mean) However, IF lead accumulation in sediments is determined through Portland Harbor RI/FS to be posing unacceptable risk AND loading study suggests a particular stormwater outfall could be materially contributing to that risk, then further controls could be required by ODEQ Doesn t seem likely. Lead considered by EPA to be contaminant of secondary ecological significance in Portland Harbor. Does not biomagnify. MS-4 and SSO discharges (which include transportation corridors) also need to meet 1200Z benchmark and/or lower concentration determined to be necessary to prevent unacceptable risk from deposition. THURSDAY, AUGUST 8, 2013 STRAFFORD SEMINAR 55

56 Parameter Specific Comparison: Copper Cu CWA Program: 1200-Z NPDES 20 ug/l (total) benchmark technology based Cleanup Program: Portland Harbor JSCS 2.7 ug/l (dissolved) SLV 5-20 ug/l flat portion of stormwater comparison curve in App. E to Guidance for Evaluating the Stormwater Pathway THURSDAY, AUGUST 8, 2013 STRAFFORD SEMINAR 56

57 Copper at 1200Z Permit Level Goal: Protecting in-stream beneficial uses, focused on water column exposure pathways. Questions regarding appropriate benchmark: Benchmark of 20 ug/l is technology based Would have adopted 6 ug/l to achieve goal of <10% probability of exceeding WQS but for the lack of affordable and feasible treatment technologies Currently questions whether appropriate to take into account chelation potential in receiving water in adjusting benchmark Benchmark will be reconsidered in next permit modification (2017) THURSDAY, AUGUST 8, 2013 STRAFFORD SEMINAR 57

58 Copper at JSCS SCE level How ODEQ/EPA currently approaching: Goal is to meet the JSCS SLV of 2.7 ug/l (10x below NPDES benchmark) However, if have implemented all practical BMPs AND have achieved flat portion of App. E curves AND loading study shows no likely adverse impact on sediment, then no further treatment required at this time but adaptive management required and additional treatment may be required in future. THURSDAY, AUGUST 8, 2013 STRAFFORD SEMINAR 58

59 Copper Portland Harbor Knee of Curve 1200Z benchmark 20 ug/l JSCS SLV: 2.7 ug/l THURSDAY, AUGUST 8, 2013 STRAFFORD SEMINAR 59

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61 Copper conclusions Legal: EPA same as lead: EPA has no CERCLA authority absent violation of permit ODEQ has authority under exception to Oregon permit shield ONLY IF (1) ODEQ Director determines necessary to protect environment OR (2) applied to the deposition or accumulation of lead. Maybe consider that 1200Z benchmark (20 ug/l) is technology based, rather than risk based. Permit risk-based criteria would have been 6 ug/l, compared to 2.7 ug/l JSCS SLV. But hard for Director to determine it is necessary for a discharger under the Cleanup program to meet more stringent criteria when it is not necessary for a neighboring property discharging under the 1200Z NPDES permit to do so Could require more than meeting 20 ug/l benchmark if necessary to prevent deposition that is causing environmental harm, but copper not generally deposition problem due to solubility THURSDAY, AUGUST 8, 2013 STRAFFORD SEMINAR 61

62 Copper conclusions Practical: As with lead, 1200Z and Cleanup Program should require same concentration at end of pipe (numeric and method, e.g. geometric mean) However, IF copper accumulation in sediments is determined through Portland Harbor RI/FS to be posing unacceptable risk AND loading study suggests a particular stormwater outfall could be materially contributing to that risk, then further controls could be required by ODEQ Doesn t seem likely. Copper considered by EPA to be contaminant of secondary ecological significance in Portland Harbor Highly soluble and does not biomagnify. Many dischargers in Pdx Harbor exceed 20 ug/l and there are no known feasible treatment technolgies, so even meeting 20 ug/l will take time MS-4 and SSO discharges (which include transportation corridors) need to meet 1200Z benchmark and/or lower concentration determined to be necessary to prevent unacceptable risk from deposition THURSDAY, AUGUST 8, 2013 STRAFFORD SEMINAR 62

63 Parameter Specific Comparison: PCBs CWA Program: 1200-Z NPDES Cleanup Program: Portland Harbor JSCS Total PCBs 2 ug/l impairment reference concentration for discharges into 303(d) listed water bodies (such as Portland Harbor) ug/l SLV Approx ug/l flat portion of stormwater comparison curve in App. E to Guidance for Evaluating the Stormwater Pathway THURSDAY, AUGUST 8, 2013 STRAFFORD SEMINAR 63

64 PCBs at 1200Z Permit Level Goal: Protecting in-stream beneficial uses, focused on water column exposure pathways. Only addressed as reference concentration for 303(d) impaired receiving water bodies (such as Portland Harbor) Reference Concentration is 2 ug/l THURSDAY, AUGUST 8, 2013 STRAFFORD SEMINAR 64

65 PCBs at JSCS SCE level JSCS SLV of ug/l known to be unrealistic (and often undetectable) So, if have implemented all practical BMPs AND have achieved flat portion of App. E curves (approx. 0.1 ug/l) AND loading study shows no likely adverse impact on sediment, then no further treatment required at this time but adaptive management required and additional treatment may be required in future. THURSDAY, AUGUST 8, 2013 STRAFFORD SEMINAR 65

66 PCBs Portland Harbor Knee of Curve 1200Z 303(d) ref. conc. 2 ug/l JSCS SLV ug/l THURSDAY, AUGUST 8, 2013 STRAFFORD SEMINAR 66

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69 PCB conclusions Legal: EPA PCBs are impairment pollutant monitored in all Portland Harbor permits so EPA has no CERCLA authority absent violation of permit ODEQ has authority under exception to Oregon permit shield ONLY IF (1) ODEQ Director determines necessary to protect environment OR (2) applied to the deposition or accumulation of PCBs. Easier to determine that necessary when RI shows that stormwater is a significant source and PCBs are clear risk driver in Portland Harbor. Relatively insoluble and therefore associated with TSS and does biomagnify. Primary risk pathway is bioaccumulation from sediment, so focus is on deposition or accumulation Still will lead to inequity if Director determines it is necessary for a discharger under the Cleanup program to meet more stringent criteria when it is not necessary for a neighboring property discharging under the 1200Z NPDES permit to do so. THURSDAY, AUGUST 8, 2013 STRAFFORD SEMINAR 69

70 PCB conclusions Practical: RI/FS will show PCBs posing unacceptable risk and that stormwater is contributing to it. IF loading study suggests a particular stormwater outfall could be materially contributing to that risk, then further controls will be required by ODEQ. Need way (loading studies?) to determine what level of PCB control necessary to prevent recontamination based on site-specific and river hydrodynamic specific factors MS-4 discharges (which include transportation corridors) also need to be subject to same process to determine what controls are necessary to prevent unacceptable risk from deposition THURSDAY, AUGUST 8, 2013 STRAFFORD SEMINAR 70

71 Joan P. Snyder Stoel Rives LLP (503) THURSDAY, AUGUST 8, 2013 STRAFFORD SEMINAR 71